in-re-tt-fountains-of-tomball-ltd-incorrectly-named-as-mbs-fountains ( 2016 )

COURT OF APPEALS FOR THE
FIRST DISTRICT OF TEXAS AT HOUSTON
ORDER
Appellate case name: In re TT-Fountains of Tomball, Ltd., incorrectly named as
MBS Fountains of Tomball, Ltd. d/b/a Fountains of Tomball,
and Henry S. Miller Realty Management, LLC, Relators
Appellate case number: 01-15-00817-CV
Trial court case number: 2014-00998
Trial court: 215th District Court of Harris County
On September 28, 2015, this Court denied the motion for temporary stay of the
February 8, 2016 trial setting filed by Relators, TT-Fountains of Tomball, Ltd.,
incorrectly named as MBS Fountains of Tomball, Ltd. d/b/a Fountains of Tomball, and
Henry S. Miller Realty Management, LLC. This Court’s order denied the motion
because, among other reasons, Relators had already served their amended discovery
responses and the trial setting was more than four months away from the date of the
Relators’ petition for a writ of mandamus. This Court’s order also requested a response
from the real party in interest, Laurie Mejia-Rosa, to Relators’ mandamus petition which
seeks to vacate the respondent trial judge’s September 15, 2015 order denying Relators’
second amended motion to withdraw and amend deemed admissions in the underlying
personal injury suit filed by the real party in interest.
On December 12, 2015, after counsel for the real party in interest received an
extension of time due to an alleged lack of notice of the petition, he filed a notice of
appearance and a response. On December 18, 2015, Relators filed a reply.
On January 8, 2016, Relators filed this amended motion for temporary relief, again
seeking a stay of the trial setting of February 8, 2016, contending that a stay is necessary
because they will need adequate time to prepare a viable defense before trial, which is
now only one month away. Relators further assert they have been prejudiced by “a delay
of nearly a month and a half [since this Court’s September 28, 2015 Order which] was
occasioned by counsel for the Real Party in Interest’s alleged lack of notice, which could
have been avoided had counsel filed a designation of lead counsel as required by the
rules.” Relators’ Am. Mot. for Temp. Relief at 6 (emphasis in original). Although no
response has been filed by the real party in interest in opposition to this amended motion
yet, Relators’ certificate of compliance indicates that counsel for the real party in interest
has been contacted and is opposed to this amended motion for temporary relief. See TEX.
R. APP. P. 52.10(a).
Accordingly, we grant the Relators’ amended motion for temporary relief and
ORDER that the trial date of February 8, 2016, in the above-referenced trial court cause
number is stayed. See TEX. R. APP. P. 52.10(b). This stay is effective until the
mandamus petition in this Court is finally decided or this Court otherwise orders the stay
lifted. See id. Any party may file a motion for reconsideration of the stay. See id. at
52.10(c).
It is so ORDERED.
Judge’s signature: /s/ Laura C. Higley
 Acting individually  Acting for the Court
Date: January 11, 2016